Lee v Ashers Baking Co Ltd & Ors  NICA 39
The Court of Appeal in Northern Ireland has upheld that a Christian-run bakery was guilty of discrimination after they refused to make a cake containing the message “Support Gay Marriage”.
In May 2014, Gareth Lee placed an order for a customised cake with Ashers Baking Company (“Ashers Bakery”). Mr Lee, a gay rights activist and member of QueerSpace, asked for the cake to be decorated with the Sesame Street characters of Bert and Ernie (the logo for QueerSpace) alongside the words “Support Gay Marriage” for an event to mark the end of Northern Ireland Anti-homophobic Week. The order was accepted by Ashers Bakery, but days later Mr Lee was told his order could not be completed as the bakery was a “Christian business” opposed to gay marriage and they shouldn’t have accepted the order in the first place. Mr Lee was given a refund and was able to secure a cake from another bakery in time for the event.
Mr Lee issued a Civil Bill in November 2014 claiming damages for breach of statutory duty in and about the provision of goods, facilities and services. The matter first appeared in front of District Judge Brownlie who accepted that the owners of Ashers Bakery – the McArthur family – had a genuine and sincere Christian belief, but Ashers Bakery was a for profit business, not a religious organisation, and therefore couldn’t avail itself of any religious exceptions under the Equality Act (Sexual Orientation) Regulations 2006 (NI) (“the 2006 Regulations”). Her Honour reached the following conclusions:
1. The McArthurs knew or perceived Mr Lee to be gay/or associated with others who were gay;
2. Decorating the cake would not require the McArthurs to promote or support gay marriage, which was contrary to their deeply held religious beliefs;
3. The cancellation of the order was inextricably linked to the sexual relations between same sex couples; and
4. Mr Lee did not share the religious or political opinion which confined marriage to a heterosexual orientation.
Her Honour held that Ashers Bakery and its owners directly discriminated against Mr Lee on the grounds of sexual orientation contrary to Regulation 5(1) of the 2006 Regulations and on the grounds of religious and political belief contrary to the Fair Employment and Treatment Order 1998 (NI) (“the 1998 Order”).
The McArthurs appealed.
The Court of Appeal upheld the judgment of District Judge Brownlie. They held that as “a matter of law”, Ashers Bakery had directly discriminated against Mr Lee on the grounds of sexual orientation. They found that the message on the cake could only accrue to gay or bisexual people and that “the appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or … ‘Support Marriage’. … [I]t was the use of the word ‘Gay’ in the context of the message which prevented the order from being fulfilled” . They further commented that the reason the order was cancelled was because the appellants would not provide a cake that supported gay marriage, a concept associated with the protected personal characteristics of the gay and bisexual community, and therefore that was direct discrimination.
Their Honours also upheld that it was not necessary to read down or disapply provisions of the 2006 Regulations or the 1998 Order to take account of the right of Ashers Bakery to hold and manifest their religious beliefs in regards to marriage under article 9 of the European Convention on Human Rights.
In particular Lord Chief Justice, Sir Morgan rejected the appellants’ argument that they would be endorsing marriage equality by baking and decorating the cake as requested. His Honour held that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either” .
His Honour further commented that legislation regarding equality could not be changed to suit one particular religious or political group:
The supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. … [T]he appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that reflects their own political or religious message in relation to sexual orientation .
His Honour also criticised the Equality Commission for Northern Ireland for not providing advice to the McArthurs during the matter.
The Court also addressed constitutional issues raised by the Attorney General for Northern Ireland and found that prohibitions on discrimination in regards to religious belief or political opinion in legislation such as the Northern Ireland Act 1998 and Northern Ireland Constitution Act 1973 does not affect the legality or the power to make, confirm and approve subordinate legislation such as the 2006 Regulations and the 1998 Order.
The Ashers Bakery case has received international attention and has been described as landmark ruling. Anti-discrimination laws are enacted to ensure people aren’t discriminated against because of certain characteristics, such as their sexual orientation. This decision reinforces the right to be free from discrimination on the basis of sexual orientation.
Most importantly, this decision shows that businesses aren’t allowed to provide a service only to those who accord with their beliefs. A business should not be able to discriminate against individuals for certain characteristics, such as sexual orientation, even if the owners or directors hold firm beliefs.
This case is relevant for Australia in light of the Australian government’s Exposure Draft proposing legislative protections for “conscientious objectors” to same-sex marriage for religious bodies or organisations in the provision of facilities, goods and services. If Australia were to follow the broader implications of this decision, it would mean that bakers, florists, civil celebrants, registrars and indeed any other business providing a service would not be able to discriminate against heterosexual and homosexual couples.
The full text of the decision can be found here.
Christine Mellino is a PLT student at the Human Rights Law Centre.